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Copyright v. Indexing, Part 1: TorrentSpy

A prediction: the world of copyright law is about to collide with the world of digital indexing and search, and the collision will be among the most important digital copyright issues of the next several years.

A few weeks ago, the major movie studios filed a lawsuit against the operators of TorrentSpy. Although the TorrentSpy suit has been characterized as just the latest chapter in the MPAA's attack on Bit Torrent file sharing, on closer examination it looks more like a wholesale attack against Internet indexing generally.

In the complaint [PDF], the studios level claims of contributory infringement, inducement, and vicarious liability against TorrentSpy for maintaining an index of "dot torrents." These files are functionally similar to links, pointing to files hosted by others. Unlike some other sites, TorrentSpy neither maintains a "tracker" nor hosts any infringing files. (Wikipedia has a good entry about the bit torrent protocol, explaining the relationship between dot torrents, trackers, and files being shared.)

In its motion to dismiss the suit, TorrentSpy puts the question crisply: how is TorrentSpy different from Google? After all, Google indexes dot torrent files, too (just include "filetype:torrent" in your search string). For that matter, how is TorrentSpy different from the search index maintained by Bit Torrent? A search for "battlestar" there turns up Battlestar Galactica results that look a lot like those at TorrentSpy. Google, TorrentSpy and Bit Torrent all have DMCA "notice-and-takedown" procedures that allow copyright owners to demand the removal of links from the index, if those links lead to infringing content.

The complaint gives little guidance about what the studios think separates TorrentSpy from any other index. It alleges that "the predominant use" of the index is for infringement (shades of MGM v. Grokster!). It claims that "indexing files according to specific titles of copyrighted television programs" is evidence of inducement. It argues that TorrentSpy "favorably compare[s] its website to other peer-to-peer services widely used for infringing activities." I'm sure the plaintiffs will further develop their "TorrentSpy is different" themes as the case goes forward.

But that's the important question raised by the TorrentSpy lawsuit: what's the difference between a "good" index and a "bad" index, and is that a distinction that copyright law can effectively make? In 1998, when Congress passed the DMCA's "safe harbor" provisions, it seemed to be saying that indexes should be shielded from copyright claims, so long as they implemented a "notice-and-takedown" procedure. The TorrentSpy suit (as well as the MP3Board.com lawsuit) suggests that the entertainment industry wants to renegotiate that bargain in court. The result could have important implications not just for torrent indexes, but for all online index and search services.